Ruhmath Poyakkara v. Special Tahsildar Land Acquisition (NH), Kannur; Executive Engineer, NH Division, Kannur; State of Kerala rep. by District Collector, Kasaragod

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** ## **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944** ## **FAO NO. 147 OF 2019** **[AGAINST THE ORDER dtd.31.10.2005 IN I.A.NO.343/2005 IN LAR 48/2004 OF SUB COURT, HOSDURG]** ## **APPELLANT/PETITIONER/CLAIMANT:** RUHMATH POYAKKARA AGED 50 YEARS D/O.ABOOBACKER (LATE),NEAR PALLIKARE RAILWAY GATE, BY ADVS. HEMALATHA BINU GEORGE ## **RESPONDENTS/RESPONDENT/REFERRING OFFICER:** 1. THE SPECIAL TAHSILDAR. LAND ACQUISITION, (NATIONAL HIGHWAYS), KANNUR, PIN- 670 001. 2. THE EXECUTIVE ENGINEER, N.H.DIVISION, KANNUR,PIN-670001. 3. STATE OF KERALA REPESENTED BY DISTRICT COLLECTOR, KASARAGOD,PIN-671 121. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO No.147/2019 ..2.. ## **JUDGMENT** ## **SHOBA ANNAMMA EAPEN,J:** This appeal is filed under Section 104 r/w Order XLIII Rule 1(c) of the Civil Procedure Code by the appellant/claimant challenging common order dated 31.10.2005 passed by the Land Acquisition Reference Court, namely, the Court of Subordinate Judge, Hosdurg, dismissing IA No. 343/2005 in LAR No.48/2004, which is the petition for condoning the delay in filing the restoration petition, I.A.No.342/2005. 2. The appellant is the claimant in LAR No.48/2004. The reference was made under Section 18 of the Land Acquisition Act (for short, “the LA Act”) by the first respondent, the referring officer. In the LAR case, a property admeasuring 9.483 cents [3.80 ares in Re.Sy.No.711/9B (N.S.711/20) of Nileshwar Village, Kasaragod] owned by the appellant/claimant was compulsorily acquired for construction of a railway over bridge in the National Highway-17 (now, FAO No.147/2019 **==> picture [40 x 9] intentionally omitted <==** 'NH-66') at the Pallikkare railway level crossing. The Special Tahsildar(N.H.) has awarded a sum of Rs.2000/- per cent to the claimant. Dissatisfied with the compensation awarded by the Land Acquisition Officer, the claimant preferred an application before the Special Tahsildar, Land Acquisition, under Section 18 of the Land Acquisition Act, seeking a reference of her claim for enhanced compensation, for determination of the court. The said application was numbered as LAR No.48/2004 before the Sub Court, Hosdurg. 3. The reference case, LAR No.48/2004, under Section 18 of the LA Act was posted for hearing on 08.06.2004. On that day, the claimant appeared and sought time for filing statement and the case was adjourned to 23.07.2004. Since the claimant as well as her counsel was absent on that day, the Sub Court, Hosdurg closed the L.A.R. 4. IA No.342/2005 was filed under Order IX Rule 9 and Section 151 of CPC for restoring the claim petition along with IA No.343/2005 under Section 5 of the Limitation Act for FAO No.147/2019 **==> picture [40 x 9] intentionally omitted <==** condoning the delay of 258 days in filing the restoration application. IA Nos.342/2005 & 343/2005 were dismissed on 31.10.2005, stating that the claimant failed to satisfy the court below that they were prevented by sufficient cause from appearing before the court below. Aggrieved by the same, the appellant has filed this appeal before this Court. 5. We have heard the learned counsel for the appellant and the learned Government Pleader. 6. The learned Government Pleader opposed the appeal stating that there were laches on the part of the appellant/claimant in prosecuting the case and sufficient reasons have not been put forth by the claimant for explaining the delay of 258 days in filing the application for restoration. 7. It is settled law that non-participation of the claimant, when the matter was taken up for hearing by the reference court, does not justify closing of the case without proper consideration. The court has to answer the reference by passing an award. If the claimant does not participate in the FAO No.147/2019 **==> picture [40 x 9] intentionally omitted <==** inquiry before the reference court, she stands the risk of the award being passed detrimental to her interest. 8. In the decisions reported in **Khazan Singh v. Union of India** [2002(1) KLT 644 (SC)], **Krishna Pillai v. State of Kerala** [1988 (2) KLT 898], **Joseph v. Government of Kerala** [1991 (2) KLT 69 (DB)] and **Vilasini Amma v. State of Kerala** [2007 (3) KLT SN 72 (C.No.92) (DB)], it was held that once the matter is referred to the reference court under Section 18 of the LA Act, that court cannot close the reference, but, has to pass an award on merits. In **Kunjayyan v. State of Kerala** [2012 (1) KLT 799], it was held that the reference application for reference under Section 18 of the LA Act cannot be dismissed for default, whereas the court has to pass an award on merits. Further, in **Rajmani v. Collector, Raipur** [1997 (1) KLT SN 5 (C.No.6) SC], it was held that it is the duty and power of the reference court to determine just and adequate compensation on relevant facts and the law applicable by sitting in the armchair of a prudent purchaser in the open FAO No.147/2019 **==> picture [40 x 9] intentionally omitted <==** market. The reference court cannot abdicate its statutory function of answering the reference by dismissing the same for default for the reason that the claimant, on whom the burden lies, has remained absent. 9. In this case, the claimant was absent on the date of posting on 23.07.2004 and there was no representation from the side of claimant. The reference court dismissed the reference for default. In **Kunjayyan's case (supra),** it was held that when the court does not possess the jurisdiction to dismiss the reference for default, it ought to have rectified the mistake and remedied the injustice by allowing the restoration petition filed by the claimant. It was further held that the court's concern is to undo the wrong done to the party and not to allow technicalities to triumph. The court, instead of dismissing the petitions, ought to have allowed the same by correcting the mistake done by the court in dismissing the reference case for default. 10. The claimant filed I.A.No.342/2005 for restoring the FAO No.147/2019 **==> picture [40 x 9] intentionally omitted <==** Reference Case and I.A.No.343/2005 for condoning the delay of 258 days in filing the restoration petition. As held in **Kunjayyan's case (supra),** the court ought to have rectified their mistake of dismissing the reference case for default, instead of answering the reference. Hence, we are of the view that the appellant/claimant is entitled to succeed and the orders in I.A.Nos.342/2005 and 343/2005 are to be set aside, since the reference court closed the Land Acquisition Reference Case without answering the reference. However, it is brought to our notice that this appeal was filed on 27.06.2019. For the past three years, there were laches on the part of the appellant/claimant for bringing up the case before this court for disposal. Hence, we are of the view that if the court below orders enhanced compensation, the claimant will not be entitled for interest on the enhanced amount for the period of delay in filing this appeal and till the date of this Judgment. 11. In the result, the appeal is allowed. The common FAO No.147/2019 ..8.. order inasmuch as it relates to IA No.342/2005 and the order in IA No.343/2005 in LAR No.48/2004 is set aside. The order passed in LAR No.48/2004 is also set aside. The court below shall answer the reference after giving a reasonable opportunity to the claimant to adduce evidence. However, it is made clear that in the event of any enhancement being granted to the appellant, she shall not be entitled for interest on the enhanced amount for the period of delay in filing this appeal and till the date of this Judgment. The appellant is directed to appear before the court below on **21.11.2022** . sd/- ## **A. MUHAMED MUSTAQUE** ## **JUDGE** Sd/- ## **SHOBA ANNAMMA EAPEN** ## **JUDGE** MBS/-